By Sam Mendez, executive director of the Cannabis Law and Policy Project
If a recreational marijuana retail store advertised in a newspaper that was mailed to a residence, are they breaking the law?
In a surprising move, a Portland-based U.S. Postal Service (USPS) office issued a statement warning against advertisements for mailing marijuana pursuant to the USPS’s Domestic Mail Manual (DMM), and also citing to the Controlled Substances Act for ads seeking to sell or buy marijuana. The Oregonian reported the statement stating the USPS “warned newspapers that it is a felony to mail material that includes marijuana advertising. But the USPS statement never says it is a felony, nor do the laws that the statement cites to. Notably, the Oregonian pointed out that the statement came from a local office and not a regional or national office.
The USPS statement cites to section 601.9.4.1 of the DMM, which states, “Any advertising, promotional, or sales matter that solicits or induces the mailing of any article described in PUB 52 as hazardous, restricted, or perishable is nonmailable….”1 It’s important to note this only pertains to material that “induces the mailing” of substances like marijuana, so it would not apply to advertisements, for example, for a brick-and-mortar store.
But the statement also cites to the Controlled Substances Act § 843(c)(1), which states that it is “unlawful” to advertise for “the purpose of seeking or offering illegally to receive, buy, or distribute a Schedule I controlled substance.” This is broader than the DMM, and could include more general advertisements, such as those for stores, because advertisers in that case intend to sell and distribute marijuana. However, the section also states, “The term ‘advertisement’ does not include material which merely advocates the use of a similar material, which advocates a position or practice, and does not attempt to propose or facilitate an actual transaction in a Schedule I controlled substance.”
What exactly is an “actual transaction”? The term isn’t specifically defined in the statute. It is reasonable to argue that an online ad, say on craigslist, offering to buy or sell marijuana, is attempting to propose an actual transaction. But what if a store is simply advertising its name? There’s no specific transaction being proposed though they are indirectly proposing to potential customers to come to their store and engage in transactions. Still, this is attenuated, and an over-broad interpretation of the statute.
The 8/29/13 Cole Memo is worth bringing up, which provided guidelines for enforcement of marijuana in the wake of legalization in Washington and Colorado. The advertising contemplated above is just one of many ancillary actions surrounding marijuana use and transactions that are all illegal under the Controlled Substances Act but not being prosecuted by the Federal government. So if the Federal government is not prosecuting users and businesses selling state-legal marijuana, it seems a stretch to cite the Act regarding advertising. That said, the Cole Memo only states that state-legalized marijuana was not a Department of Justice priority so long as states were mindful of the factors stated in the Cole Memo. Further, the Cole Memo states that it cannot be used as a legal defense. So the USPS can still assert marijuana’s federal illegality.
If the above reasoning is accurate, then perhaps this is all much ado about nothing. Perhaps the USPS meant to only refer to ads inducing the mailing of marijuana. Or perhaps the local office was mistaken and a higher office within the USPS will clarify. Whatever the outcome, Senators Ron Wyden and Jeff Merkley and Reps. Earl Blumenauer and Suzanne Bonamici are all seeking clarification from the U.S. postmaster general. With that sort of weight weighing in, we can expect further explanation.
1 Pub 52 is Publication 52, which are USPS rules for what materials are mailable.